Demarcation of indigenous lands: understand how it works – 02/06/2023 – Daily life
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Funai (National Foundation of Indigenous Peoples) currently handles almost 480 requests from indigenous peoples for the Union to recognize the lands as theirs.
The body, however, lost the attribution of land demarcation with the approval of the so-called Esplanada MP by the National Congress. As the government is restructured, competence for demarcation, which was with the Ministry of Indigenous Peoples —to which Funai is linked—, was transferred to the Ministry of Justice. It is not yet known how the change will take place in practice in the new folder.
Recognition of land is a right provided for in the Federal Constitution and established through an administrative process, regulated by decree of the Presidency of the Republic (decree 1775, of January 8, 1996).
Until then, the land identification and delimitation study was carried out by a working group under the responsibility of Funai, which included professionals from different areas, such as environmental engineers and agronomists.
The group is coordinated by a specialist anthropologist. It is up to him to deal with the indigenous people during the process, which requires the ability to communicate in the languages of the original peoples.
technical group collects documents from notary offices and land authorities and also conducts anthropological, environmental, land, sociological and cartographic studies, among others, to present a report to Funai. It is the president of Funai who can deny or approve the request for demarcation.
The body then publishes the report in the Official Gazette of the Union and the State where the area is located. Funai also informs the city hall of that region about the ongoing process.
From the opening of the process and up to 90 days after publication by the presidency of Funai, the deadline is open for individuals or legal entities to manifest themselves on the demarcation, to claim compensation or to point out problems in the report, for example.
“Anyone, be it a farmer or a company, can challenge Funai’s studies with documents, reports and expertise. Funai must respond to these challenges before sending them to the Ministry of Justice”, says lawyer Juliana de Paula Batista, of ISA (Social and Environmental Institute).
The Ministry of Justice then has 30 days to publish an ordinance specifying the limits of the indigenous land. As of this ordinance, Funai installs signs in the territory with warnings that the place is inhabited by indigenous peoples.
The demarcation is only ratified by decree of the Presidency of the Republic. Deadlines, according to experts on the subject, are rarely met and last for years.
Finally, Funai registers the area on behalf of the Union with the SPU (Union Heritage Secretariat).
The Constitution guarantees the resident compensation only for the improvements eventually made to that land —for example, buildings, orchards, corrals.
The small producer, classified as such by the agrarian reform, should be contemplated with compensation for improvements and with resettlement by Incra (National Institute of Colonization and Agrarian Reform).
The Constitution does not provide compensation for those who invade the area after presidential approval. However, specialists point out that, if the bill (PL) 490/2007, which establishes the so-called temporal framework, is sanctioned, it is possible that this administrative process will be modified.
“By the new law, people who enter these lands at any time could be compensated”, says the lawyer.
The text of the time frame, approved by the Chamber of Deputies last Tuesday (30), considers that only the territories occupied by the original peoples on the date of promulgation of the Federal Constitution of 1988, on October 5 of that year, belong to indigenous peoples.
The absence of the community in that area until then mischaracterizes the framework for claiming the indigenous land, except in the case of conflict over possession persisting until October 5, 1988.
According to Juliana, from ISA, there are indigenous communities that were expelled from their lands and will have difficulties in gathering evidence that they lived in that area years ago.
“It is a very arbitrary decision, indigenous peoples were protected by the Union until the 1988 Constitution. This means that they could not even go to court”, says the lawyer.
Funai accounts for 761 registered indigenous lands, that is, 14% of the Brazilian territory. Of these, eight were homologated and another 475 are regularized.
Step by step demarcation of indigenous lands
- Funai working group carries out an identification study and presents it to the body’s presidency, who must approve the report and publish a summarized version in the Official Gazette of the Union and State
- A period of 90 days is open for individuals and legal entities to demonstrate against the study and/or claim compensation for improvements in that land
- The administrative process returns to Funai, which responds to any contradictions pointed out and forwards it to the Ministry of Justice
- The Ministry of Justice makes a decision and, if applicable, publishes an ordinance determining the demarcation and limits of the indigenous land
- The demarcation is ratified by decree of the Presidency of the Republic
- Funai goes to the SPU (Union Heritage Secretariat) to carry out the notarial registration of the approved area
Demarcation in numbers
- Under study (Funai group makes report): 137
- Delimited (Funai presidency approved report): 44
- Declared (Ministry of Justice published ordinance): 73
- Approved (decree signed by the Presidency of the Republic): 8
- Regularized (land already registered in the name of the Union): 475
Source: Funai
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